USA v. Larvie

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 19-CR-30090-RAL
19-CR-30135-RAL
Plaintiff,
vs. ORDER DENYING MOTIONS FOR
COMPASSIONATE RELEASE
JOHN LARVIE,
Defendant.
Before the Court are motions for compassionate release filed in two separate cases by
defendant John Larvie ("Larvie"). Doc. 84 in USA v. Larvie. 3:19-CR-30090-RAL; Doc. 77 in
USA V. Larvie. 19-CR-30135-RAL. Larvie claims he has a terminal illness and has undergone
chemotherapy treatment in 2014 for osteosarcoma. Docs. 84, 84-2 in USA v. Larvie, 3:19-CR-
30090-RAL.
In April of 2020, Larvie plead guilty to making false statements during the purchase of a
firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2), Doc. 35 in USA v. Larvie, 19-CR-
30135-RAL,and assault withadangerous weapon in violation of 18U.S.C.§§ 1153 and 113(a)(3).
Doc. 42 in USA v. Larvie. 3:19-CR-30090-RAL. In September of 2020, this Court sentenced
Larvie to concurrent sentences of 38-months in federal custody in both criminal files. Doc. 68 in
USAv.Larvie. 3:19-CR-30090-RAL;Doc.61 in USA v. Larvie. 19-CR-30135-RAL. Larvie later
filed a motion to vacate, set aside, or correct sentences under 28 U.S.C. § 2255, which this Court
denied. Larvie v. United States. 20-CV-3023-RAL,Doc. 20.
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Larvie's expected release date is October 13, 2022, and he already appears to be at a
residential reentry center in Minneapolis, Minnesota, (https://www.bop.gov/inniateloc/ Federal
Register No.: 18187-273 last accessed Feb. 22, 2022). In both files, his defense attorney, Mallory
Schulte, has filed notice of an intent to supplement the motions for compassionate release. While
this Court is required to consider supplements made on behalf of criminal defendants seeking
compassionate release, ^ United States v. Howard. 989 F.3d 1068, 1070 (8th Cir. 2021)
(remanding compassionate release request to district court because it failed to consider
supplement), Larvie's compassionate release motions can be denied at this time without prejudice
to refiling because Larvie has plainly failed to satisfy the administrative exhaustion requirement
under 18 U.S.C. § 3582(c)(1)(A).
"According to the plain terms of § 3582(c)(1)(A), prisoners can bring compassionate-
release motions on their own once they have exhausted their administrative remedies." United
States V. Houck. 2 F.4th 1082, 1083 (8th Cir. 2021). A defendant may move for a sentence
reduction only "after the defendant has fiilly exhausted all administrative rights to appeal a failure
ofthe Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from
the receipt of such a request by the warden ofthe defendant's facility, whichever is earlier[.]" 18
U.S.C. § 3582(c)(1)(A). "This requirement is a mandatory claim-processing rule" and "must be
enforced so long as the opposing party properly raises it." Houck. 2 F.4th at 1084 (citations
omitted). "Thus, courts dismiss unexhausted compassionate-release motions without prejudice."
Id
Larvie indicates he has not fully exhausted his administrative remedies. Doc. 84 at 2-3 in
USA V. Larvie. 3:19-CR-30090-RAL; Doc. 77 at 2-3 in 3:19-CR-30135-RAL. Therefore, this
Court must dismiss Larvie's motions for compassionate release. Therefore, it is
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ORDERED that Larvie's requests for compassionate release, Doc. 84 in USA v. Larvie.
3:19-CR-30090-RAL;Doc.77 in USA v. Larvie. 19-CR-30135-RAL,are denied without prejudice
to refiling after the defendant has fully exhausted all administrative rights to appeal a failure ofthe
Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the
receipt of such a request by the warden ofthe defendant's facility, whichever is earlier.
DATED this 22nd day of February, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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